Opinion
11-P-370
03-02-2015
COMMONWEALTH v. BRIAN H. SHERMAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Brian H. Sherman, was convicted of three counts of rape and one count of indecent assault and battery. In this consolidated appeal from both his convictions and the denial of his motion for a new trial, the defendant claims that: (1) there was insufficient evidence to convict him of indecent assault and battery as the claim was charged to the jury; (2) the prosecutor's closing argument was improper; (3) the judge should have conducted a voir dire of a juror who allegedly slept during final jury instructions; and (4) defense counsel was ineffective. We affirm.
1. Sufficiency of the evidence. The defendant argues that the Commonwealth failed to prove every element of the indecent assault and battery charge as it was charged to the jury. He contends that the judge's instruction required the Commonwealth to prove that the defendant touched the victim directly on her vagina and that it failed to meet this burden because the victim testified only that the touching occurred over her clothing. Although we acknowledge the judge's instruction included the language (set out in the margin) upon which the defendant bases his argument, the instructions taken in their totality made clear that a touching of the vagina, under clothing, was not required. That being the case, the evidence was sufficient. See Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314-315 (1997), and cases cited (touching over clothes can constitute indecent assault and battery).
Although the defendant did not move for a required finding of not guilty on this charge, we nevertheless consider whether the omission created a substantial risk of a miscarriage of justice. See Commonwealth v. Bell, 455 Mass. 408, 411-412 (2009). In doing so, we apply the familiar Latimore standard. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The judge instructed that: "[T]he Commonwealth must prove beyond a reasonable doubt that the defendant did in fact engage in a touching, however slight. This means that in this particular case, you must be satisfied that the Commonwealth proved that the defendant touched [the victim's] vagina with his mouth or his finger and/or his penis but he did not enter her genital opening." Although this language occurred during the judge's instructions concerning indecent assault and battery, as it was a lesser included offense of rape -- and the defendant was not convicted of the lesser included offenses, -- the judge did not reinstruct the jury when he came to the stand-alone charge of indecent assault and battery, instead referring them back to his earlier instruction.
Among other things, the judge instructed that an indecent assault and battery "was a touching, however slight," and that "the touching was harmful or offensive," "without justification or excuse," and "without . . . consent." When describing the word indecent, the judge instructed that the "reaching between [a person's] legs may constitute an indecent assault and battery." None of these instructions stated or implied that a touching directly on the flesh is required.
For the same reason, the defendant's argument that the jurors relied on that portion of the judge's instruction precluded the jurors from considering the fourth indictment of indecent assault and battery as a separate and distinct crime from the lesser included offense of indecent assault and battery arising from the first three indictments for rape also fails.
2. Closing argument. The defendant next claims that errors made by the prosecutor during her closing argument warrant reversal. We review for a substantial risk of a miscarriage of justice.
At trial, defense counsel raised numerous points of error in the prosecutor's closing. After extensive discussion, the judge gave an agreed upon curative instruction. Defense counsel did not renew his objection following the judge's instructions.
The prosecutor's reference to a tear in the victim's vagina was based on the testimony of Dr. Nancy Russo, the examining physician, notwithstanding further, more detailed testimony that the tear occurred in the victim's perineum. Her statement that the tear was bleeding was also a fair inference from Dr. Russo's testimony, despite other testimony that the victim was menstruating at the time. The prosecutor's reference to a "puncture" was based on the victim's statement to the grand jury, which she affirmed at trial, that "I think he punctured something." See Commonwealth v. Thomas, 439 Mass. 362, 365 (2003). Both the evidence presented and the application of common sense and experience support the prosecutor's comments that the weight of the defendant caused the bruising to her back, that his penis entering her vagina would account for the perineal injury, and that he groomed and targeted the victim prior to the rape. See Commonwealth v. Junta, 62 Mass. App. Ct. 120, 127-128 (2004). Finally, the judge forcefully instructed the jurors that closing arguments are not evidence, and that they are the final arbiters of the facts.
The examining physician testified that the tear was a "vaginal laceration."
3. Sleeping juror. Following the jury instructions, defense counsel informed the judge during a sidebar conference that he had observed a juror whose head had been "nodding down" during the instructions. The judge noted that according to his observations, the juror had been alert throughout the trial and accordingly denied defense counsel's request to have the juror designated an alternate. The judge added that he could "call [the juror] over or something, if [defense counsel] want[s]," but defense counsel did not pursue the issue further.
If an inattentive juror is discovered, the judge has discretion to determine the nature of intervention required; "not every complaint regarding juror attentiveness requires a voir dire." Commonwealth v. Beneche, 458 Mass. 61, 78 (2010), citing Commonwealth v. Braun, 74 Mass. App. Ct. 904, 905 (2009), and Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 81 (2009). "The burden is on the defendant to show that the judge's decision in the matter was 'arbitrary or unreasonable.'" Commonwealth v. Beneche, supra, quoting from Commonwealth v. Brown, 364 Mass. 471, 476 (1973). The defendant has not met his burden here.
The judge's decision to proceed without questioning the juror was not arbitrary or unreasonable in this instance where he specifically found that, apart from defense counsel's concern, the juror had been alert throughout the entire trial, and did not have "reliable information" to the contrary. See Commonwealth v. Dancy, supra. Moreover, the prosecutor stated that she "saw [the juror] once during the trial and at first I thought he was sleeping, but then I realized he wasn't. It was just how he was carrying himself." The judge was also free to disregard the self-serving affidavits to the contrary submitted in support of the defendant's motion for a new trial. See Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48-49 (1997). Last, a recording of the instructions was provided to the jurors during their deliberations which they were free to utilize as they deemed necessary. There was no error. Contrast Commonwealth v. Braun, supra ("[T]he judge abused his discretion by failing to conduct a voir dire where there was a very real basis for concluding that the juror was sleeping during testimony").
4. Ineffective assistance of counsel. For a claim of ineffective assistance of counsel, we apply the familiar standard set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
To establish ineffective assistance of counsel, a defendant is required to show that the "behavior of counsel f[ell] measurably below that which might be expected from an ordinary fallible lawyer" and that this deficiency likely deprived the defendant of a "substantial ground of defence." Commonwealth v. Saferian, supra. "A defense counsel's strategic decisions do not amount to ineffective assistance of counsel unless they are 'manifestly unreasonable.'" Commonwealth v. Bousquet, 407 Mass. 854, 863-864 (1990), quoting from Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979).
The defendant became acquainted with the victim while she was a patient at a psychiatric hospital where the defendant was employed as a nurse. At trial, the victim testified that she was in the hospital for "trying to hurt myself." The rape occurred when the defendant visited the victim after she had been transferred to a different hospital. Dr. Russo opined at trial that the resulting perineum injury could not have been self-inflicted based on the "force vector from below, aiming towards her posterior."
The defendant claims that defense counsel was ineffective in his failure to present expert testimony that would have rebutted Dr. Russo's opinion. In support of that claim, he presents an affidavit containing the expert medical opinion of Dr. Stephen Pillemer, who opined that the injury "could have been self-inflicted with either the tine of a fork or a staple," and the expert psychiatric opinion of Dr. Fabian Saleh, also by affidavit, that "he cannot conclude to a reasonable degree of medical certainty that [the defendant] inflicted the injury to the victim's perineum." The defendant also claims that defense counsel was ineffective in failing to present entries from the victim's psychological records that would have shown her history of self-harm and manipulative behavior.
We agree with the motion judge, who was also the trial judge, that defense counsel's choice to attack Dr. Russo's opinion of the injury through cross-examination of her and the victim was not manifestly unreasonable. This is especially true where defense counsel effectively explored inconsistencies in Dr. Russo's report and attacked the victim's credibility. Further, and perhaps most importantly, the expert opinions could not have made a difference in the defendant's case where they were unsupported and conclusory in nature. As for the relevance of the victim's psychiatric records, the defendant offers no link between her prior actions and the likelihood that she would have inflicted the injury present in this case. The jurors were also aware of the reason she was in a psychiatric hospital. Finally, the physical evidence in the case makes it even less likely that that the evidence in question would have altered the outcome of the case. See Commonwealth v. Saferian, supra. The judge did not abuse his discretion in the denying the motion for a new trial. See Commonwealth v. Murphy, 442 Mass. 485, 499 (2004).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cypher, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 2, 2015.